Case: 14-11353

Date Filed: 08/21/2014

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11353
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:14-cv-00547-CAP; 13-bkc-72055-MHM
In Re: ROBBIE THOMAS LEE,
CHRISTINA REDIC LEE,
Debtors.
_______________________________________________________
BANK OF AMERICA, N.A.,
Plaintiff-Appellant,
versus
ROBBIE THOMAS LEE,
CHRISTINA REDIC LEE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 21, 2014)

Case: 14-11353

Date Filed: 08/21/2014

Page: 2 of 3

Before TJOFLAT, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
Bank of America, N.A., appeals from the district courts affirmance of an
order from the bankruptcy court voiding Bank of Americas second-priority
mortgage lien on Robbie Lee and Christina Lees residential property in a
Chapter 7 bankruptcy proceeding.

The Lees property was subject to two

mortgage liens at the time they filed for bankruptcy. The outstanding debt on the
first-priority mortgage exceeded the fair market value of the property. Bank of
America held a second-priority mortgage, which had a value of around $23,000.
Because the debt on the first-priority mortgage exceeded the value of the property,
the Lees moved to strip off, or void in its entirety, the unsecured junior lien held
by Bank of America.
The bankruptcy court granted the Lees motion, concluding that binding
circuit precedent authorized the Lees to avoid Bank of Americas junior mortgage
lien under 11 U.S.C. 506(a) and (d). See McNeal v. GMAC Mortg., LLC (In re
McNeal), 735 F.3d 1263, 1265-66 (11th Cir. 2012); Folendore v. U.S. Small Bus.
Admin. (In re Folendore), 862 F.2d 1537, 1538-39 (11th Cir. 1989). Bank of
America appealed to the district court but moved for summary affirmance,
acknowledging that McNeal and Folendore were controlling. The district court
affirmed, and Bank of America now appeals to this Court.
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Case: 14-11353

Date Filed: 08/21/2014

Page: 3 of 3

Bank of America maintains that the Supreme Courts opinion in Dewsnup v.

Timm, 502 U.S. 410, 112 S. Ct. 773 (1992), makes clear that Folendore was
wrongly decided and should be overturned. Dewsnup held that a Chapter 7 debtor
could not strip down, or partially void, a creditors lien on real property where
the value of the property is less than what is due the creditor. 502 U.S. at 417, 112
S. Ct. 773. According to Bank of America, after Dewsnup, the Eleventh Circuit
stands alone in holding that underwater junior liens may be stripped off.
However, in McNeal, we reaffirmed Folendore despite the holding in
Dewsnup. McNeal, 735 F.3d at 1265-66. Accordingly, it remains the law of this
Circuit that a wholly unsecured junior liensuch as the one held here by Bank of
Americais voidable under 506(d). Id. Bank of America concedes that this
panel is bound by McNeal and Folendore to affirm the bankruptcy courts order
but reserves the right to seek rehearing of the issue by the Court sitting en banc.
We therefore affirm.
AFFIRMED.